Category Archives: Legal

Administration Trying to Reverse Rule Blocking Nursing Home Arbitration Clauses

Late in the Obama Administration the Center for Medicare and Medicaid Services promulgated a regulation that provides that nursing homes will no longer receive federal funding if they use arbitration clauses in their contracts (arbitration clauses deny your access to jury trials).  There is now unwelcome news in several press reports that the Trump Administration is looking to gut that rule.

 

The Trump Administration is About to Put Nursing Home Profits Ahead of Nursing Home Patients

Some of the most heart-wrenching stories of abuse, mistreatment and neglect you’re likely to hear involve nursing homes. As America’s baby boomers age, and nursing home populations continue to grow, big corporations have, not surprisingly, started to take note. In fact, the vast majority of nursing homes in the United States – 70%, according to the Centers for Disease Control and Prevention – are run by for-profit corporations, and an increasing number of homes are being snapped up by Wall Street investment firms.

And that, in turn, can often mean that high quality care takes a backseat to high profits.

Increasingly, these giant corporations are using forced arbitration clauses — contract terms that say that people cannot sue them, no matter what laws they break, and instead people harmed by illegal acts can only bring cases before private arbitrators who are generally beholden to the corporations. These clauses make it far harder for the victims of mistreatment to hold a facility accountable where there’s abuse or serious negligence, and they minimize the incentive to provide the highest quality of care.  The secretive arbitration system also effectively lets homes sweep the facts about problems under the rug, so that the public and regulators never learn about widespread or egregious abuses.

That’s why, in 2016, the Centers for Medicare and Medicaid Services said nursing homes should no longer receive federal funding if they use arbitration clauses in their contracts. It was a commonsense proposal that would ensure families can hold nursing homes accountable for abuse and neglect. The government essentially said – and rightly so – that protecting desperately vulnerable people is more important than squeezing out an extra percentage of profit for hedge fund owners.

But that was 2016. Now, the Trump Administration appears to be gearing up to kill the proposal.

Senator Al Franken (D-MN), a fierce opponent of arbitration who has fought corporate lobbyists to protect Americans’ right to their day in court, said on Tuesday that “the Trump Administration is planning to lift the ban on nursing home arbitration clauses.”

So the White House, it appears, is ready to deliver another gift to hedge funds and banks – the corporate entities that increasingly control the nursing home industry – at the expense of the sick and elderly and their families.

It’s no wonder why corporate lobbyists working for the nursing home industry have made killing the CMS proposal a top priority: unlike the public court system (where trials are open to the public, press and regulators), nursing homes benefit enormously from the secretive system of arbitration, where the facts about abuses can be (and often are) buried. “Confidentiality” provisions – which really translate into gag orders – and non-transparent, non-public handling make it easier for systemic problems to stay hidden, and to continue.

If nursing homes are permitted to continue opting out of the civil justice system, we can expect to see lower levels of care, and higher numbers of preventable injuries and deaths. If they succeed in keeping families out of court, the potential savings to their bottom line are enormous when you consider that abuse is very widespread (according to the government’s own study).  Public Justice, our national public interest law firm and advocacy organization, set forth an extensive factual and legal case in support of the CMS proposal, where a great deal more background is available.

Consider just a handful of the plaintiffs who were able to successfully challenge nursing homes in court:

  • A 90-year-old woman allowed to languish with a festering pressure sore, acute appendicitis, and a urinary tract infection so severe it has entered her blood.
  • A diabetic patient injected with the incorrect dose of insulin, sending them into hypoglycemic shock and causing brain damage.
  • An 81-year-old man who was viciously beaten by a roommate who’d been involved in 30 assaults prior to moving in with the victim.
  • An 87-year-old woman whose calls for help were ignored after she fell and broke her hip.

Had any of those patients been subject to an arbitration clause – as no doubt many future cases would be if the Administration folds to pressure from for-profit homes – they likely would have never had a chance to have their case heard by a jury.

Nursing homes have complete control over some of the most vulnerable and fragile people in the entire country: people who are gravely ill, who are often cognitively impaired in ways that make it hard for them to protect themselves, are completely at the mercy of these institutions.

Now, rather than working to give those patients some small measure of protection and security, the Trump Administration is poised to give them the shaft. It’s unconscionable back-pedaling that would leave millions with little recourse when they, or their loved ones, are mistreated or abused.

Photo by Chad Gierlich, via Flickr

Jury trial right in danger

HOW TO PROTECT YOURSELF FROM GOVERNMENT ASSAULT ON LAWSUITS AND DAMAGES

Responsibility and accountability – even for the powerful – are rooted into the core of our legal system. This country’s founders knew that a democracy needs a court system that empowers people to protect themselves, by holding the powerful to account. That’s why the Constitution guarantees each person the right to a trial by jury.  Thomas Jefferson said, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

The founders feared unaccountable power in the form of the King of England against his “subjects.” 21st Century America may not have a king, but it does have billion dollar corporations touching every part of every person’s life. These corporations now seek the kind of unaccountable power our founders sought to protect against, and they’re seeking that power by destroying your constitutional right to a trial by jury.

Politicians who are in the pockets of large corporations and insurance companies have devised a plan specifically aimed at destroying our right to hold those in power accountable for their misdeeds. Their plain is to enact laws that will all but destroy your right to use the judicial system to protect yourself. They have introduced bills which, if passed, will enact arbitrary changes to courts all across the country, including:

  • Limiting compensation for injuries caused by medical professionals, including doctors, hospitals, nursing homes, and medical device manufacturers, to $250,000.00, regardless of how much that injury devastated your life or the extent of malfeasance by the medical professional or company.
  • Eliminating class-action law suits, which would essentially destroy the ability to bring the kinds of cases that keep us safe
  • Eliminate individual state laws regarding lawsuits and forcing all cases to Federal Court
  • Allowing insurance companies to make “payments” rather than paying full compensation.

We must tell our government to put people first and stop trampling on our rights. PETERSON | Law has been protecting Massachusetts residents by demanding that everyone is treated fairly, regardless of gender, race, or economic status. Please join us in demanding that Congress do the same. We must ban together and contact our representatives to demand they say NO to these outrageous attacks on our rights. Go to each link below and tell them NO!

Your right to justice is at risk

This is from my American Association for Justice about legislation in Congress that seeks to prevent injured individuals from getting properly compensated, in order to purportedly help the doctors and the corporations.

However, the data from states like Texas, that limited the rights of individuals to be compensated more than fifteen years ago in hopes of saving costs, is clear that taking away an individuals’ right to get proper compensation for their injuries does not save much, if any, money on doctor’s malpractice or others’ insurance policies.

Insurance is the mechanism by which our society has opted to spread the cost of individual’s injuries over the society in general.  Taking away people’s right to sue and be compensated merely makes that injured person bear the cost effects of the injury done by some third party, without any substantial savings to the Defendant. –

AAJ-20170306-protect the right

This week, Congress will vote on legislation that will rig the system against individuals like you and tip the scales of justice in favor of powerful corporate defendants. We need to send a strong message to Congress that these anti-civil justice bills must fail.  Take Action

If you agree that it is unacceptable for Congress to eliminate your rights to hold corporations accountable, we urge you to contact your elected officials today. Tell your representatives to stand up for you and your family and vote NO on offensive anti-civil justice legislation.

Please take action today! Your elected officials need to hear from you that you want to preserve your rights to access the civil justice system.  Take Action

Your right to sue if you are injured is under attack

Congress Moves To Punish Anyone Using The ACA And Medicare

House Republicans are hoping to dismantle the Affordable Care Act by punishing those who benefit from it.

02/26/2017 05:44 pm ET | Updated 1 day ago

Anadolu Agency via Getty Images

Those who think Congress is weakening its anti-Obamacare, anti-Medicare resolve aren’t paying attention. Instead of beginning with repeal and replace bills, however, Congress has shifted focus to punishing anyone who benefits from these laws. And it’s happening right now.

On February 28, 2017, the U.S. House Judiciary Committee will markup and vote on a rushed piece of legislation, H.R. 1215, covering anyone who receives health care through a “federal program, subsidy, or tax benefit.” At a minimum, that means the Affordable Care Act, veteran and servicemember health plans, Medicare and Medicaid (i.e., the elderly, poor and disabled). Beyond this, the full scope is unclear because the bill has not been examined in a single legislative hearing.

According to H.R. 1215, punishment would begin if you (or your child or loved one) were harmed by an unsafe hospital or nursing home, in some cases injured by an unsafe drug or medical device, or even sexually abused by a doctor. If you tried to seek compensation or accountability in court, you would be forced into an inferior and cruel system of justice created just for you by lobbyists and career politicians in Washington DC.

This bill, H.R. 1215, the so-called “Protecting Access to Care Act of 2017” (more like the Protecting Access to Unsafe Care Act of 2017) is the brainchild of congressional Republicans who say they want government out of health care. Ironically, this bill is nothing if not federal mandates, including eliminating civil justice rights guaranteed by state governments. These mandates include taking power away from local juries to decide individual cases, and consolidating that power in the hands of DC politicians.

Among H.R. 1215’s many harsh provisions is a federal mandate on the value of a life. This appears in the form of an across-the-board $250,000 “cap” on compensation for “non-economic” injuries (like paralysis, trauma, reproductive harm), which would be mandated in states even where such caps are unconstitutional. That same cap would apply whether a parent lost a child, a senior citizen were harmed in a nursing home, or a family breadwinner were permanently disabled due to reckless medical care.

Other provisions include:

· A federally-mandated statute of limitations ― the time limit for someone to file a meritorious lawsuit ― which is more restrictive than a majority of state laws.

· Federal repeal of state collateral source rules, meaning a wrongdoer can reduce their obligation to compensate a patient by the amount of disability, workers compensation or other insurance received, to which a patient has a right.

· Federal repeal of state joint and several liability laws, meaning that the injured patient ― not other fully-responsible wrongdoers ― would have to cover the cost of an injury if one of the fully-responsible wrongdoers cannot pay.

· A federally-mandated prohibition against a severely-injured patient receiving a full jury award in a lump sum, leaving the patient undercompensated while the insurance company gets to sit on the money and pocket the interest.

· Federal interference with an individual’s right to contract with their own attorney on fees (while the insurance company or hospital that committed malpractice has no such restriction).

· A federally-mandated ban on including a hospital, nursing home or health care provider in a case against a drug company over an unsafe drug, even if the provider negligently prescribed or administered the drug and is jointly responsible for causing injury or death.

Medical errors are the third-leading cause of death in America, behind heart disease and cancer. Enact this bill, and watch “medical errors” rise to number one or two.

If you need any evidence, take a look at what’s happening in Texas, which has some (but not all) of these laws already. Texas attracts neurosurgeons like Christopher Duntsch, who was just sentenced by a jury to spend the rest of his life in prison:

For weeks, jurors heard the accounts of patients who had been maimed or paralyzed in horrifically bungled surgeries. Kellie Martin and Floella Brown died… “So why didn’t he stop?” … “Because of greed. Because he owed people a lot of money. He wanted to live the high life and a neurosurgeon makes big bucks. Why didn’t he stop? Because he had no conscience. He doesn’t care what he has left in his wake.”

But there’s another reason why he didn’t stop: a Texas law that severely caps damages, just like H.R. 1215 would do. As attorney Chris Hamilton explained, without this law, “Duntsch would not have been allowed to keep operating on patients. It is almost certain there would have been a significant liability lawsuit against one of the hospitals for an early patient… I cannot imagine a circumstance where the hospitals would not have kicked out a doctor like this much sooner.’”

Yet this isn’t the only case of a butcher brain surgeon in Texas. A few years ago, there was another guy, Dr. Stefan Konasiewicz. After being disciplined in Minnesota, Konasiewicz made a bee-line for Texas where he continued to harm patients as he operated on their brains.

But we don’t even need horrendous anecdotes like this to prove the point. Researchers studying patient safety in states with “caps” (like Texas) found “consistent evidence that patient safety generally falls” after caps are enacted. That’s because medical malpractice liability gives providers an incentive to be careful.

H.R. 1215 is the sixth anti-civil justice bill in less than two months coming out of the U.S. House Judiciary Committee, not a single one of which has had a hearing. As lobbyists and politicians scheme to strip Americans of their legal rights, they are hoping no one notices. If they succeed on any of these bills, it will be open season on American families and small businesses that are harmed by super-rich industries or reckless health care.

As I’ve said before, “woke America, these ‘under the radar”’ issues need your attention. Time to add them to the long list of things that need ‘resisting.’”

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PETERSON | Law

Osler “Pete” Peterson

617-969-1500 – Newton

February 2017

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Troubling News On Traffic Safety

Injuries and deaths from vehicle crashes have always been a major problem on U.S. roadways. But as a nation, we have made steady progress over the past four decades, thanks to education and many safety innovations. Then came reports in 2015 and now 2016 that this trend has been reversed.

So far, safety experts are still scrambling to pinpoint just exactly what is causing the upswing. But as we discuss in this must-read issue of “You Should Know,” those of us who work to protect the rights of people injured in vehicle crashes know the common culprits all too well.

Experts Looking for Answers to Rising Traffic Injuries, Deaths

Pedestrian AccidentAccidents involving pedestrians and bicyclists are also on the rise.

Cheaper Gas, Better Economy, Distracted Driving Among Contributing Factors

For decades, auto accidents have trended downward. Road fatalities steadily declined from more than 50,000 annually in the early 70s to just over 30,000 in recent years. Credit goes to many advances in safety, including:
  • Crashworthy vehicles that better protect those involved in a crash
  • New technologies like anti-lock braking, vehicle stability controls and self-driving sensors that prevent accidents in the first place
  • Education programs and tougher laws aimed at seatbelt use, teen drivers and driving while impaired.

But starting in 2015, road safety hit the skids when the number of people lost in crashes jumped 7.2 percent from 2014, the largest percentage increase in 50 years. And the news for 2016 may even be worse as the National Highway Traffic Safety Administration (NHTSA) recently projected an 8 percent increase in traffic deaths for the first nine months of 2016 over 2015.

Some safety experts have blamed the increase on more drivers traveling more miles. Longer commutes and more road trips, coupled with cheaper gas and lower unemployment, adds up to more drivers on the road. Even those not in a vehicle are at a higher risk as car-pedestrian and bike fatalities have risen as well.

But NHTSA’s Administrator Mark Rosekind said he and his colleagues can’t accept that a better economy means more people are going to die on our roads. “We still have to figure out what is underlying those lives lost,” he said. To that end, NHTSA and the National Safety Council joined forces to launch the Road To Zero campaign in October, which aims to end all traffic fatalities in the U.S. in the next 30 years. This campaign provides grants to non-profits that help research and implement innovative highway safety measures.

Car Crash? There’s an App For That

The spike in traffic fatalities and accidents is often blamed on the use of smartphones. According to the latest data from the Pew Research Center, almost 80 percent of U.S. adults own smartphones. More than 600,000 of those people are operating a smartphone while driving at any given time.

Texting and driving have proven to be a dangerous combination, with 78 percent of distracted driving-related crashes attributed to a texting driver. However, dangers from non-texting apps that encourage driver interaction have also arisen.

The messaging app Snapchat features a speed filter that tells users how fast they are traveling, which some have argued encourages drivers to travel at unsafe speeds. A man who suffered a traumatic brain injury during a recent collision is suing both the other driver for her recklessness as well as Snapchat for encouraging the teen to drive at unsafe speeds. Waze, a navigation app, rewards users for reporting traffic jams and roadside obstructions while driving. The “Gotta Catch ’Em All” mentality of Pokémon Go has caused accidents when users ignored safety to play the game.

Protect Yourself and Others

Traditionally the six root causes of serious accidents are driver inattention, fatigue, impaired driving, speeding, aggressive driving and adverse weather conditions. With those factors in mind, here are some tips you can use to prevent traffic accidents and protect yourself and others:

  • Silence and put away all phones for the duration of your drive.
  • Keep your eyes on the road and leave the distractions at home.
  • When buying a new or used car, prioritize safety ratings and purchase cars with safety features. Also be sure to run a recall check on your car at SaferCar.gov.
  • If you are a pedestrian or bicyclist, pay attention to vehicle traffic even if you have the right of way. A distracted driver could mean disaster.
  • Follow all posted speed limits and wear your seat belt.
  • Always drive alert, awake and sober.
You Should Know is a copyrighted publication of Voice2News, LLC, and is made possible by the attorney shown above. This newsletter is intended for the interest of past and present clients and other friends of this lawyer. It is not intended as a substitute for specific legal advice. If you no longer wish to receive these emails, click here to unsubscribe from this newsletter, and your request will be honored immediately. You may also submit your request in writing to: Steven L. Miller, Editor, 4907 Woodland Ave., Des Moines, IA 50312. Be sure to include your email address.

Apple’s patented tech could safeguard phones from distracted driving

From my American Association for Justice daily news feed –

Family blames Apple’s FaceTime for fatal wreck.

AP (1/2) reports that the family of Moriah Modisette, a 5-year-old girl killed near Dallas in a Christmas Eve 2014 crash with a vehicle operated by a driver who was purportedly using Apple’s FaceTime video chat app while driving at 65 mph, had filed suit against the tech giant. The complaint, filed in Santa Clara Superior Court and obtained by KTLA, alleges that police found FaceTime running on the driver’s iPhone and that Apple knew the risks associated with using FaceTime while driving, but it nonetheless failed to implement iPhone technology that would have automatically disabled FaceTime when used in a vehicle moving at highway speeds – technology which Apple had itself patented in 2008.

The Washington Post (1/2, Wootson, 11.43M) reports that the driver, Garrett Wilhelm, was following the Modisette family’s Camry, and police believe that Wilhelm, due to his use of FaceTime, never saw the Modisettes’ brake lights when their car stopped, and his SUV “slammed into the Camry at full highway speed.” The Post adds that Wilhelm’s iPhone survived the collision and when police found the device, FaceTime was still running. While Wilhelm faces criminal manslaughter charges, the Modisette family believes Apple is also at fault, because iPhones should detect whether the user is operating a moving vehicle and disable the FaceTime app preloaded on iPhones. The Post notes that the Modisette case represents “yet another example of drivers’ crashing while distracted by apps on their smartphones..”

Business Insider (12/30, Price, 3.42M) quotes the central allegations of the Modisettes’ complaint, which avers that Apple’s “failure to design, manufacture, and sell the iPhone 6 Plus with the patented, safer, alternative design technology already available to it … and failure to warn users that the product was likely to be dangerous when used or misused in a reasonably foreseeable manner … rendered the Apple iPhone 6 defective when it left defendant APPLE INC.’s possession, and were therefore a substantial factor in causing plaintiffs’ injuries and the decedent’s death.”

BOTS Act

Who says Congress can’t get anything done – this both fills someone’s real need, plus has a good acronym.  This is from my Thompson-Reuters newsletter.


Congress Restricts Ticket-Buying “Bots”

December 19, 2016

Money, keyboard and hand on computer mouseThe United States Congress recently passed the “Better Online Ticket Sales Act” (BOTS Act).  The new law, which President Obama is expected to sign, makes it illegal to use automated software (“bots”) to circumvent security systems that are designed to restrict purchases of tickets to public events, such as concerts and athletic events.

Currently, a variety of companies that sell event tickets use bots to make mass ticket purchases immediately after event tickets go on sale to the public.  In some instances, the bots are designed to circumvent computer systems that are intended to limit the number of tickets that can be purchased by a single buyer.

These mass purchases sometimes result in extremely rapid ticket sell-outs, frustrating individual ticket buyers.  Often, the tickets purchased using bots are re-sold to the public.  The re-sale price for the tickets is generally higher than face value.  This process thus generally results in greater costs to consumers.

The BOTS Act makes it illegal to bypass computer security measures in order to make mass purchases of tickets for events with a capacity of more than 200 attendees.  Under the terms of the Act, bypassing the computer security measures is characterized as an “unfair or deceptive act” and is thus within the regulatory jurisdiction of the Federal Trade Commission.

The goals of the BOTS Act are sensible and useful.  It is uncertain, however, that specific federal legislation was necessary in order to accomplish the objective of limiting computer security circumvention.  It seems that existing federal laws, such as the Computer Fraud and Abuse Act, provide adequate authority to support legal action against parties who engage in circumvention of computer systems that are engaged in interstate commerce.

One noteworthy apparent consequence of the BOTS Act is the formal expansion of the FTC’s role in regulation of online transactions and activities.  The BOTS Act characterizes efforts to circumvent computer security systems as illegal commercial trade practices.  This appears to grant to the FTC the lead role in regulating U.S. computer security.

With the implementation of the BOTS Act, it seems that the FTC has joined law enforcement authorities at the leading edge of computer security enforcement in the United States.  That role will likely require significant resources for the FTC.  In order to execute this mission effectively, the FTC must receive substantial additional resources.